This case was last updated from Los Angeles County Superior Courts on 02/24/2021 at 14:46:31 (UTC).

JEREMY BRAMER VS SHAWN DAYAN ET AL

Case Summary

On 02/02/2018 JEREMY BRAMER filed a Personal Injury - Motor Vehicle lawsuit against SHAWN DAYAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DENNIS J. LANDIN, CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2794

  • Filing Date:

    02/02/2018

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DENNIS J. LANDIN

CHRISTOPHER K. LUI

DANIEL M. CROWLEY

 

Party Details

Plaintiff and Petitioner

BRAMER JEREMY

Defendants, Respondents and Cross Plaintiffs

DAYAN SHAWN

DOES 1 TO 50

EZROS LUCIEN

BETTER LIVING HOME CARE

MOM'S HOME CARE

BETTER LIVING & CARE HOMES INC.

MOM'S HOME CARE DOE 3

BETTER LIVING & CARE HOMES INC. DOE 4

EZROS DOE 1 LUCIEN

BETTER LIVING HOME CARE DOE 2

MOM'S HOME CARE A CALIFORNIA CORPORATION

Defendants and Cross Defendants

BETTER LIVING & CARE HOMES INC.

MOM'S HOME CARE DOE 3

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

KHORSHIDI OMID ESQ.

Defendant and Respondent Attorneys

NELSON B. ERIC ESQ.

MAKI KEVIN MICHAEL

BLACK PHILIP EMLYN

MORENO RICHARD C.

SLACK CHAD MICHAEL

Defendant and Cross Plaintiff Attorney

SLACK CHAD MICHAEL

Defendant and Cross Defendant Attorney

BLACK PHILIP EMLYN

 

Court Documents

Opposition - OPPOSITION CROSS-DEFENDANT, MOM'S HOME CARE'S OPPOSITION TO DEFENDANT SHAWN DAY AN'S MOTION TO CONTEST DEFENDANT MOM'S HOME CARE AND LUCIEN EZROS' APPLICATION FOR DETERMINATION OF GOOD F

12/9/2020: Opposition - OPPOSITION CROSS-DEFENDANT, MOM'S HOME CARE'S OPPOSITION TO DEFENDANT SHAWN DAY AN'S MOTION TO CONTEST DEFENDANT MOM'S HOME CARE AND LUCIEN EZROS' APPLICATION FOR DETERMINATION OF GOOD F

Motion for Determination of Good Faith Settlement (CCP 877.6)

11/24/2020: Motion for Determination of Good Faith Settlement (CCP 877.6)

Motion to Challenge the Good Faith of a Settlement (CCP 877.6)

11/25/2020: Motion to Challenge the Good Faith of a Settlement (CCP 877.6)

Proof of Service (not Summons and Complaint)

11/5/2020: Proof of Service (not Summons and Complaint)

Notice of Settlement

11/5/2020: Notice of Settlement

Declaration - DECLARATION DECLARATION OF DEFENDANT, SHAWN DAYAN

9/4/2020: Declaration - DECLARATION DECLARATION OF DEFENDANT, SHAWN DAYAN

Informal Discovery Conference Form for Personal Injury Courts

8/19/2020: Informal Discovery Conference Form for Personal Injury Courts

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; HEAR...)

7/16/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; HEAR...)

Request for Refund / Order - REQUEST FOR REFUND / ORDER REFUND #22339

2/21/2020: Request for Refund / Order - REQUEST FOR REFUND / ORDER REFUND #22339

Notice of Ruling

1/22/2020: Notice of Ruling

Notice of Posting of Jury Fees

1/22/2020: Notice of Posting of Jury Fees

Motion in Limine - MOTION IN LIMINE NUMBER 4

1/14/2020: Motion in Limine - MOTION IN LIMINE NUMBER 4

Motion in Limine - MOTION IN LIMINE NUMBER 2

1/14/2020: Motion in Limine - MOTION IN LIMINE NUMBER 2

Amendment to Complaint (Fictitious/Incorrect Name)

1/3/2020: Amendment to Complaint (Fictitious/Incorrect Name)

Reply - REPLY REPLY RE MOTION TO DISQUALIFY EXPERT WITNESS

12/27/2019: Reply - REPLY REPLY RE MOTION TO DISQUALIFY EXPERT WITNESS

Notice and Acknowledgment of Receipt

12/17/2019: Notice and Acknowledgment of Receipt

Separate Statement

11/19/2019: Separate Statement

Amendment to Complaint (Fictitious/Incorrect Name)

5/31/2019: Amendment to Complaint (Fictitious/Incorrect Name)

167 More Documents Available

 

Docket Entries

  • 02/05/2021
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Challenge the Good Faith of a Settlement (CCP 877.6) - Not Held - Rescheduled by Court

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  • 02/04/2021
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 02/02/2021
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Order to Show Cause Re: Dismissal - Not Held - Advanced and Vacated

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  • 01/21/2021
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 01/15/2021
  • DocketRequest for Dismissal; Filed by Jeremy Bramer (Plaintiff)

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  • 01/04/2021
  • DocketProposed Order on Application for Determination of Good Faith Settlement (C.c.p.877.6); Filed by Lucien Ezros (Doe 1) (Defendant); Mom's Home Care (Doe 3) (Defendant)

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  • 12/24/2020
  • Docketat 09:56 AM in Department 28, Daniel M. Crowley, Presiding; Court Order

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  • 12/24/2020
  • DocketCertificate of Mailing for ((Court Order Re: Notice of Settlement of Entire Case) of 12/24/2020); Filed by Clerk

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  • 12/24/2020
  • DocketMinute Order ( (Court Order Re: Notice of Settlement of Entire Case)); Filed by Clerk

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  • 12/22/2020
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) (5290) - Not Held - Taken Off Calendar by Party

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213 More Docket Entries
  • 07/09/2018
  • DocketOpposition to Def's Motion to Set Aside Default

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  • 07/05/2018
  • DocketNOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; DECLARATIONS OF B. ERIC NELSON, SHAWN DAYAN AND ISAAC DAYAN; MEMORANDUM OF POINTS AND AUTHORITIES

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  • 07/05/2018
  • DocketMotion for an Order; Filed by Shawn Dayan (Defendant)

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  • 05/11/2018
  • DocketDefault Entered; Filed by Plaintiff/Petitioner

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  • 05/11/2018
  • DocketREQUEST FOR ENTRY OF DEFAULT

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  • 03/22/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Jeremy Bramer (Plaintiff)

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  • 03/22/2018
  • DocketProof of Service by Substituted Service

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  • 02/02/2018
  • DocketComplaint; Filed by Jeremy Bramer (Plaintiff)

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  • 02/02/2018
  • DocketComplaint

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  • 02/02/2018
  • DocketSummons; Filed by null

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Tentative Rulings

Case Number: BC692794    Hearing Date: November 23, 2020    Dept: 28

Motion for Summary Judgment

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On February 2, 2018, Plaintiff Jeremy Bramer (“Plaintiff”) filed a complaint against Defendant Shawn Dayan (“Defendant Dayan”) alleging motor vehicle and general negligence for an automobile collision that occurred on January 24, 2017.

On December 10, 2019, Plaintiff filed a first amended complaint

On January 3, 2020, Plaintiff amended his complaint to rename Doe 4 as Defendant Better Living & Care Homes, Inc.

On January 22, 2020, Plaintiff filed a second amended complaint that was erroneously labeled as a first amended complaint.

On September 4, 2020, Defendant Better Living & Care Homes, Inc. filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

On November 13, 2020, Defendant Dayan filed a cross-complaint against Defendant Better Living & Care Homes, Inc. seeking indemnification, apportionment, declaratory relief, and alleging negligence based on a theory of respondeat superior.

Trial is set for February 4, 2021.

PARTY’S REQUEST

Defendant Better Living & Care Homes, Inc. asks the Court to enter summary judgment in its favor and against Plaintiff for three reasons.  First, Defendant Better Living & Care Homes, Inc. argues it could not operate the vehicle that collided into Plaintiff’s because Defendant Better Living & Care Homes, Inc. is an entity, not a person.  Second, Defendant Better Living & Care Homes, Inc. argues it did not own, lease, or possess the vehicle that Defendant Dayan collided into Plaintiff’s vehicle.  Third, Defendant Dayan was not Defendant Better Living & Care Homes, Inc. employee or acting within the course and scope of an employment relationship at the time of the collision.

OBJECTION

Defendant Dayan’s objection to Defendant Better Living & Care Homes, Inc.’s undisputed material fact number 5 is OVERRULED.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The element of duty “may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)

California Civil Code section 1714, subdivision (a) states, in part: [e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care . . . . “As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1080 [citation and quotations omitted].)

In Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, the Supreme Court summarized the so-called Rowland factors: “In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’” (Id. at p. 771 [citing Rowland v. Christian, 69 Cal.2d 108, 113).) Although foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, one or more of the Rowland factors may be determinative of the duty analysis in a given case. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237, fn. 15.)

“The issue of whether a duty exists is a question of law to be determined by the court . . . . (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620.) A party who moves for summary judgment because it did not owe a duty of care must affirmatively negate the existence of duty. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848-850.) A court may grant summary judgment because when there is no triable issue of material fact regarding causation only when there is no other reasonable conclusion. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)

To hold a defendant liable for negligent entrustment, the plaintiff must prove that (1) the driver was negligent in operating the vehicle; (2) that the defendant was an owner of the vehicle operated by the driver; (3) that the defendant knew, or should have known, that the driver was incompetent or unfit to drive the vehicle; (4) that the defendant permitted the driver to use the vehicle; and (5) that the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864.) Negligent entrustment necessarily requires an owner of a vehicle entrusting that vehicle to another person.  (See ibid.)  The defendant’s liability from negligently entrusting the vehicle relates to the defendant’s conscious disregard of the entrusted person’s incompetence or unfitness to drive.  (See ibid.)

Plaintiff’s second amended complaint alleges the following.  On January 24, 2017, Defendant Dayan collided a vehicle into a vehicle Plaintiff was driving.  (SAC, pp. 4-5.)  Defendant Dayan was acting within the course and scope of his agency with Defendant Better Living & Care Homes, Inc.  (Ibid.Defendant Better Living & Care Homes, Inc. entrusted Defendant Dayan with the vehicle Defendant Dayan was driving.  (Ibid.) Ezros, Mom’s Home Care, and Better Living & Care Homes, Inc. have a unity of interest.  (SAC, p. 6.)  Defendants Mom’s Home Care and Better Living & Care Homes, Inc. are alter egos of Defendant Lucien Ezros.  (Ibid.)

Defendant Better Living & Care Homes, Inc.’s undisputed material facts establish the following.  Defendant Dayan was not an employee of Defendant Better Living & Care Homes, Inc.’s on the day of the incident.  (UMF No. 2.)  Defendant Dayan was not acting within the course and scope of any employment relationship with Defendant Better Living & Care Homes, Inc. on the day of the incident.  (UMF No. 3.)  Defendant Dayan never testified or stated in written discovery that he was an employee of Defendant Better Living & Care Homes, Inc.’s at the time of the incident.  (UMF Nos. 4-5.)

Defendant Better Living & Care Homes, Inc.’s undisputed material facts further establish the following.  Defendant Better Living & Care Homes, Inc. has never entrusted Defendant Dayan with the operating of any vehicle Defendant Better Living & Care Homes, Inc. owned, leased, or possessed.  (UMF No. 6.)  Defendant Dayan was not driving a vehicle Defendant Better Living & Care Homes, Inc. owned, leased or possessed at the time of the incident.  (UMF No. 7.)

The Court finds Defendant Better Living & Care Homes, Inc. has met its burden of proof.  Defendant Better Living & Care Homes, Inc. has demonstrated that it did not entrust Defendant Dayan with the vehicle Defendant Dayan operated.  Defendant Better Living & Care Homes, Inc. has also demonstrated that Defendant Dayan was not employed by Defendant Better Living & Care Homes, Inc. when Defendant Dayan collided a vehicle into Plaintiff’s vehicle.  As such, Defendant Better Living & Care Homes, Inc. has met its burden and the burden shifts to the opposing party.

Defendant Dayan’s undisputed material facts establish the following.  Defendant Lucien Ezros owns fifty percent of shares in Defendant Mom’s Home Care.  (DUMF No. 8.)  Defendant Lucien Ezros owns forty-nine percent of shares in Better Living & Care Homes, Inc. Defendant Lucien Ezros hired Defendant Dayan as a facility manager and assistant for both Defendants Mom’s Home Care and Better Living & Care Homes, Inc. DUMF No. 11.)  Defendants Mom Home Care paid Defendant Dayan regardless of wither Defendant Dayan performed work or tasks for either Defendants Mom’s Home Care and Better Living & Care Homes, Inc.  (DUMF No. 12.)  At the time of the accident, Defendant Dayan was traveling from Defendant Better Living & Care Homes, Inc.’s office to Home Depot to purchase a mailbox for Better Living & Care Homes, Inc.

The Court finds Defendant Dayan has met Defendant Dayan’s burden.  Defendant Dayan’s evidence shows Defendant Dayan was, at a minimum, acting as an agent for Defendant Better Living & Care Homes, Inc. Defendant Dayan was acting for the benefit of Defendant Better Living & Care Homes, Inc. in driving to Home Depot to purchase a mailbox for Defendant Better Living & Care Homes, Inc. Defendant Better Living & Care Homes, Inc. is vicariously liable for Defendant Dayan’s negligence.

The evidence submitted shows Defendant Better Living & Care Homes, Inc. might be entitled to summary adjudication as to the negligent entrustment allegation.  However, summary adjudication cannot be granted because Defendant Better Living & Care Homes, Inc. did not ask for summary adjudication.  (See Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545-1546.)

CONCLUSION

The motion for summary judgment is DENIED.

Defendant Better Living & Care Homes, Inc. is ordered to give notice of this ruling.

Defendant Better Living & Care Homes, Inc. is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC692794    Hearing Date: January 17, 2020    Dept: 28

Motion to Continue Trial and Related Dates

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On February 2, 2018, Plaintiff Jeremy Bramer (“Plaintiff”) filed a complaint against Defendant Shawn Dayan alleging motor vehicle and general negligence for an automobile collision that occurred on January 24, 2017.

On May 31, 2019, Plaintiff filed an amendment to his complaint renaming Doe 1 as Defendant Lucien Ezros and Doe 2 as Defendant Better Living Home Care.

On October 11, 2019, the Court entered default against Defendant Better Living Home Care.

On November 19, 2019, Plaintiff filed an amendment to his complaint renaming Doe 3 as Defendant Mom’s Home Care.

On December 10, 2019, Plaintiff filed a first amended complaint.

Also on December 10, 2019, the Court dismissed Defendant Better Living Home Care without prejudice.

On December 16, 2019, Plaintiff filed a motion to continue trial and related dates pursuant to California Rules of Court, rule 3.1332 and California Code of Civil Procedure section 2024.050.

On January 3, 2020, Plaintiff amended his complaint to rename Doe 4 as Defendant Better Living & Care Homes, Inc.

Trial is set for February 3, 2020.

PARTIES REQUESTS

Plaintiff asks the Court to continue trial and the related dates because Plaintiff still needs to obtain discovery responses.

LEGAL STANDARD

Pursuant to California Rules of Court, rule 3.1332, subdivision (a), “[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm.  All parties and their counsel must regard the date set for trial as certain.”  Under California Rules of Court, rule 3.1332, subdivision (b), “[a] party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations.  The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

California Rules of Court, rule 3.1332, subdivision (c) states that “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits.  The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.”  California Rules of Court, rule 3.1332, subdivision (d) sets forth factors that are relevant in determining whether to grant a continuance.

California Code of Civil Procedure section 2024.050 allows a court to grant leave to complete discovery proceedings.  In doing so, a court shall consider matters relevant to the leave requested, including, but not limited to: (1) the necessity of the discovery, (2) the diligence in seeking the discovery or discovery motion, (3) the likelihood of interference with the trial calendar or prejudice to a party, and (4) the length of time that has elapsed between previous trial dates.  (Code Civ. Proc. § 2024.050.)

DISCUSSION

The court denies Plaintiff's motion to continue trial.  The court finds that Defendant, Dayan, identified the entities for whom he may have been acting in the course and scope in responses to form interrogatory no. 2.11 on August 27, 2018.  The court also finds that Plaintiff knew of the identity of Lucien Ezros and of his having a relationship to those entities in May 2019.  Plaintiff has had ample time to conduct discovery in this area.  There is no good cause to continue trial.

CONCLUSION

The motion is DENIED.

Plaintiff is ordered to give notice of this ruling.

Case Number: BC692794    Hearing Date: January 07, 2020    Dept: 4A

Motion to Disqualify an Expert Witness

Having considered the movingsupplemental moving, opposing, supplemental opposing, and reply papers, the Court rules as follows.

BACKGROUND

On February 2, 2018, Plaintiff Jeremy Bramer

On May 31, 2019, Plaintiff filed an amendment to his complaint renaming Doe 1 as Defendant Lucien Ezros and Doe 2 as

On July 7, 2019, Plaintiff filed a motion to disqualify Steven Nagelberg, M.D. or exclude Dr. Nagelberg’s s 2034.250, subdivision (b).

On October 11, 2019, the Court entered default against Defendant Better Living Home Care.

On November 19, 2019, Plaintiff filed an amendment to his complaint renaming Doe 3 as Defendant Mom’s Home Care.

On December 10, 2019, Plaintiff filed a first amended complaint.

Also

Trial is set for February 3, 2020.

PARTIES S

Plaintiff asks the Court to disqualify Dr. Nagelberg Nagelberg’s Nagelberg an independent observer Plaintiff hired for an examination Dr. Nagelberg

Plaintiff also asks the Court to impose $4,935 in monetary sanctions against Defendant Dayan and his prior counsel of record, Eric Nelson.

Defendant Dayan asks the Court to impose $900 against Plaintiff’s counsel for opposing this motion.

Defendant Ezros

LEGAL STANDARD

California Code of Civil Procedure section 2034.250, subdivision (a) states “[a] party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order.  This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

California Code of Civil Procedure section 2034.250, subdivision (b) states “[t]he court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” This generally requires a showing that the burden “clearly outweighs” whatever benefits are sought from the § 2017.020, subd. (a).) An objection based on an undue burden must be accompanied with evidence suggesting such a burden is present. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 549-550.)

Monetary sanctions must be imposed against a party who unsuccessfully makes or opposes a motion for a protective order under section 2134.250, subdivision (a), unless that party acted with a substantial justification or circumstances would make such sanctions unjust.  (Code Civ. Proc. § 2034.250, subd. (d).)

DISCUSSION

Plaintiff argues there is good cause to disqualify Dr. Nagelberg Nagelberg Khorshidi Ibid.)  Dr. Nagelberg Khorshidi Exh. B.)  Dr. Sherman owns Prime Observers.  (Khorshidi Exh. E.)  Dr. Sherman emailed Prime Observers’ audio recording of the examination to Plaintiff.  (Khorshidi Exh. D.)

Plaintiff alleges Dr. Nagelberg Khorshidi Dr. Nagelberg’s ’s relationship prevented Prime Observers from truly independently observing Plaintiff to ensure the examination was proper.  (Khorshidi

Defendants Dayan Ezros California Code of Civil Procedure section 2034.250, subdivision (a) Nagelberg Nagelberg Khorshidi Exh. B.)  As such, Plaintiff has statutory support for the relief sought.

However, the Court finds Plaintiff has not shown that allowing Dr. Nagelberg remain as a retained expert and testify would be oppressive to Plaintiff.  At most, Plaintiff has proffered a speculative argument that there may possibility have been an ineffective observer at Plaintiff’s March 4, 2019 examination.  There is no evidence that this will cause prejudice to Plaintiff.  Rather, Plaintiff obtained the audio recording of the March 4, 2019 examination and may file a motion in limine

Nevertheless, Plaintiff is substantially justified in bringing this motion.  Even the mere potential for a conflict of interest rendering Plaintiff’s observer as biased would raise the eyebrows of any reasonable litigator.  As such, sanctions are not properly imposed here.

The motion DENIED.

All parties’

Plaintiff ordered to give notice of this ruling.

Case Number: BC692794    Hearing Date: December 13, 2019    Dept: 4A

Motion for Protective Order

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On February 2, 2018, Plaintiff Jeremy Bramer (“Plaintiff”) commenced this action against Shawn Dayan (“Defendant”) and Does 1-50 alleging negligence for a vehicle collision that occurred on January 24, 2017.

On May 31, 2019, Plaintiff filed doe amendments to the complaint to add Defendants Lucien Ezros and Better Living Home Care based on Defendant Dayan’s testimony at Plaintiff’s deposition stating that Defendant Ezros was his employer at the time of the collision.

Between October 16 and October 22, 2019, Defendant Ezros served a notice of Plaintiff’s deposition and the parties corresponded regarding how to proceed with discovery. The parties allegedly disputed whether Defendant Ezros’ company, Mom’s Home Care, should replace Defendant Ezros in the action. (Motion, p. 5:1-5:14.)

On November 5, 2019, Defendant Ezros filed a Motion to Compel Plaintiff’s Deposition. Subsequently, on November 12, 2019, Plaintiff filed the instant Motion for Protective Order regarding Defendant Ezros’s deposition of Plaintiff. On December 6, 2019, Defendant Ezros took the Motion to Compel Plaintiff’s Deposition off calendar.

On December 10, 2019, Plaintiff filed a First Amended Complaint against Shawn Dayan and including later-added defendants Lucien Ezros, Mom’s Home Care, Better Living & Care Homes, and Does 6-50.

Trial is set for August 10, 2020.

PARTY’S REQUESTS

Plaintiff requests that the Court issue a protective order delaying Defendant Ezros’ deposition until a determination of whether Mom’s Home Care is a proper defendant in the action and limiting the scope of the deposition to areas of questioning that have not already been addressed in Defendant Dayan’s deposition of Plaintiff. Further, Plaintiff seeks an order directing Defendant Ezros to comply with the scheduling guidelines listed in the Los Angeles Superior Court Guideline for Civility in Litigation. In terms of monetary sanctions, Plaintiff requests $4,285.00 from Defendant for costs incurred in filing the present motion.

LEGAL STANDARD

A court may grant a protective order upon a noticed motion filed before, during, or after a deposition by “any party, any deponent, or any other affected natural person or organization.” (Code Civ. Proc. § 2025.420, subd. (a).) The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Civ. Code Proc. §§ 2025.420, subd. (a), 2016.040.)

The burden is on the moving party to establish good cause exists for protection from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc. § 2025.420(b).) To meet this burden, the moving party is generally required to establish that “the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.020(a).)

The court “shall” impose monetary sanctions against whichever party loses on the motion for protective order, unless it finds that party acted “with substantial justification” or other circumstances render sanctions “unjust.” (Code Civ. Proc. § 2025.420(h).)

DISCUSSION

The Court finds that Plaintiff filed a sufficient declaration detailing his meet and confer efforts with Defendant Ezros for purposes of the present motion. (Khorshidi Decl., ¶ 12-13.)

Plaintiff argues that there is good cause to grant the present motion for two reasons. First, Plaintiff contends that he should not have to attend a deposition by Defendant Ezros until the parties have determined through discovery whether Defendant Ezros should be dismissed and replaced with Mom’s Home Care. (Motion, p. 7:1-7:22.) Second, Defendant Ezros should not be permitted to engage in areas of questioning that have already been addressed in Plaintiff’s first deposition conducted by Defendant Dayan. (Id. at 8:1-8:11.) Furthermore, Plaintiff requests monetary sanctions and an order directing Defendant Ezros to abide by the guidelines set forth by the Los Angeles Superior Court regarding civility in scheduling depositions. (Id. at p. 8:19-8:22, p. 9:1-9:6.)

First, the Court notes that in the time after filing the instant motion, Plaintiff filed a First Amended Complaint on December 10, 2019 adding Mom’s Home Care as a defendant and maintaining Defendant Ezros as a defendant. Thus, there is no longer any good cause for delaying Defendant Ezros’ deposition of Plaintiff on the first ground argued in the present motion since Plaintiff has affirmatively chosen to include both parties in the instant action and is thus subject to discovery by both. (See Code Civ. Proc. § 2017.010.)

Second, the Court finds that Plaintiff has not met his burden of showing how areas of questioning included in depositions conducted by Defendant Ezros are subject to a protective order. Plaintiff does not dispute that Defendant Ezros is entitled to conduct a deposition as a newly-added defendant, but requests “an order prohibiting defense counsel from engaging in questioning duplicative of questions previously asked at any prior volume of Plaintiff’s deposition.” (Motion, p. 8:8-8:11.) But Plaintiff does not offer any specific examples or additional evidence as to how answering questions contained in Defendant Ezros’s deposition would subject him to “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2025.420(b).) Without further specificity or identification of the types of “duplicative questions” from which Plaintiff seeks protection, the Court cannot determine the scope of inquiry that should be subject to a protective order. (Alpine Mut. Water Co. v. Superior Court for Ventura County (1968) 259 Cal.App.2d 45, 55; [“[t]he fact alone that the response to an interrogatory may be expensive and burdensome does not justify a refusal to answer.”].) What is more, plaintiff can object that a question was asked and answered in prior deposition, if he so chooses. Accordingly, the Court does not find good cause for a protective order on this ground.

Third, the Court finds that an order regarding Defendant Ezros’ compliance with the civility guidelines of the Los Angeles Superior Court is not necessary to resolve the issues raised in the pending discovery motion. Disputes regarding the scheduling of depositions by counsel may be properly resolved informally between the parties. Thus, the Court declines to issue the order as requested on this ground.

In terms of sanctions, the Court finds that Plaintiff acted with substantial justification in filing the present motion in light of Defendant Ezros’s Motion to Compel Deposition of Plaintiff and unresolved meet and confer efforts. Thus, the Court finds that the imposition of sanctions would be unjust given the circumstances.

Accordingly, the motion and related request for sanctions are DENIED.

Defendant Ezros is ordered to give notice.

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